Child Custody: The Wisdom of Solomon
Child custody can be one of the most explosive issues in a contested divorce.
Child custody, the arrangement divorcing parents make for the care and nurturing of unemancipated children, tests the wisdom of judges who must decide what is in the best interest of children when the parents cannot or will not.
Custody becomes contentious because parents often care more for their children than their alienated spouses. And in the heat of a divorce battle, it becomes difficult for both parents to remember that each is still a parent, that a child’s love is not divisible, that he or she loves both parents.
Ideally, the parents know their children best, so they are best equipped to decide child care arrangements. When parents cannot or will not do this, courts do it for them based on the gold standard of child welfare -- the best interest of the child. In reality, the phrase allows for a great deal of judicial discretion; in short, it means what a judge says it means and courts consider a variety of factors in deciding a child’s best interest.
When a custodial agreement cannot be reached prior to the trial date, a great deal of preparation may be required in order to effectively petition the court for custodial rights. This may include a custody evaluation.
In a child custody dispute, a judge who awards custody to the mother is not rewarding her because he thinks she is a better person, nor is a judge punishing a father who becomes the noncustodial parent. A judge’s decision about custody is based on his assessment of the situation and the state’s custody law refracted through the prism of the best interest of the child. The sounds much easier than it is.
No child can be in two places at one time, and no judge can order a child cut in two pieces to test the parents the way the Biblical King Solomon tested the two mothers who each claimed a baby as her own.
When custody is divided, the court must also often make decisions about the visitation schedule and child support paid by the noncustodial parent to the custodial parent for the benefit of the children.
Like so much about family law, judicial thinking about custody changed in the last century. At one time, judges routinely granted legal and physical custody to the mother, who became the custodial parent; the father, who became the noncustodial parent, paid child support and visited his children on a schedule. Today many courts favor joint legal custody if the parents can cooperate. Moreover, courts are receptive to a variety of child care arrangements as long as the parents can cooperate.
If the battle between spouses becomes pitched, the court may require a custody evaluation. In this, a custody evaluator -- a mental health professional such as a psychologist, or a guardian ad litem -- makes recommendations to the court about the best interest of the children. The child custody evaluation can be very invasive and difficult. A custody evaluation includes interviews, psychological testing and home visits. The objective is to understand the dynamics of the divorcing family and the rapport between the parents and child.
Needless to say, decisions about custody, visitation and child support are best made by the divorcing spouses. Courts are more than willing to order any reasonable arrangements the parties fashion. Parents warring over custody damage both themselves and the children. If a judge decides custody, he or she will not award it based on the idea of one parent being more deserving. The judge decides based on how the welfare of the child is best served -- the best interest of the children.
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PARENTING CLASSES -- In some jurisdictions, parenting classes for the parents of minors are now required as a preliminary to divorce. The classes teach parents how to minimize the negative effects of divorce on their children and serve to restate parental responsibilities in the context of divorce. They are not an eleventh-hour attempt at marriage counseling.
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